State v. Autheman

• Decision Date: 22 February 1929
• Docket Number: 5183
• Citation: 274 P. 805,47 Idaho 328
• Parties: STATE, Respondent, v. JOHN AUTHEMAN, Appellant
• Court: Idaho Supreme Court

274 P. 805

47 Idaho 328

STATE, Respondent, v. JOHN AUTHEMAN, Appellant

No. 5183

Supreme Court of Idaho

February 22, 1929

CRIMINAL LAW-HOMICIDE-ARREST WITHOUT WARRANT-WHEN LAWFUL-REASONABLE CAUSE-INSTRUCTIONS-KIDNAPPING-EVIDENCE.

1. Under C. S., sec. 8726, an officer may make arrest in daytime without warrant on a charge, made on reasonable cause, of commission of felony by party arrested, and "reasonable cause" exists where there is such state of facts as would lead a man of ordinary care and prudence to believe or entertain an honest and strong suspicion that such person is guilty.

2. Instruction, that, if jury found from evidence that a charge had been made on reasonable cause of commission of felony by defendant, his arrest by deputy sheriff without a warrant was legal, and, if charge had not been made on reasonable cause arrest was illegal, and definition of "reasonable cause" given left jury to determine whether officer was in possession of such information as would lead man of ordinary care and prudence to believe or entertain honest and strong suspicion that felony had been committed by defendant held properly given, and refusal to instruct that arrest was illegal as matter of law was proper.

3. It is the general rule that questions of law are for determination by the judge, while questions of fact are for the jury to determine.

4. If defendant jumped on running-board of automobile and forced boy who was driving it to drive him to such place or places as defendant desired, his acts, as a matter of law consituted seizure of another "with intent to cause him without authority of law,.... to be held to service or kept or detained against his will," and constituted the felony of "kidnapping," within C. S., sec. 8224.

5. Though an officer may not act on unsubstantial appearances or unreasonable stories to justify an arrest without a warrant, under C. S., sec. 8726, he is not required to satisfy himself beyond question that felony has in fact been committed.

6. Evidence held sufficient to warrant finding that deputy sheriff had reasonable cause to believe defendant had committed felony of kidnapping in violation of C. S., sec, 8224, so as to authorize defendant's arrest without a warrant.

7. Instruction, that one illegally arrested may initiate a struggle, and has right to use force to free himself from such re- straint, held properly refused for omitting the element that use of force to free one's self from illegal arrest is only justified when such force is necessary.

8. Defendant's requested instructions, fully covered by instructions given, and not unfavorable to defendant, were properly refused.

9. It must be presumed on appeal that jury obeyed trial court's instruction to disregard immaterial evidence tentatively admitted, and that the instruction cured the error in admission of such immaterial evidence.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

John Autheman was convicted of murder of the second degree, and appeals. Affirmed.

Affirmed.

Walter H. Anderson, for Appellant.

It was the duty of the court in this case to tell the jury whether the arrest was legal or illegal. (People v. Kilvington, 104 Cal. 86, 43 Am. St. 73, 37 P. 799; State v. Anselmo, 46 Utah 137, 148 P. 1071; Wiley v. State, 19 Ariz. 346, 170 P. 869, L. R. A. 1918D, 373; State v. Middleton, 26 N.M. 353, 192 P. 483.)

The arrest in this case was illegal, as it did not comply with the law in respect to the manner of making arrests and the authority of persons to make the same. (C. S., secs. 8726 and 8727.)

One who is restrained of his liberty may use such force as is necessary to regain his liberty, and if it reasonably appears that the officer intends to kill him or do him great bodily harm in order to prevent his escape he may kill the officer in self-defense. (Earles v. State (Tex. Cr.), 94 S.W. 464; Miers v. State, 34 Tex. Cr. 161, 53 Am. St. 705, 29 S.W. 1074.)

One who is being illegally arrested and attempts to resist the arrest or is illegally detained and attempts to escape and a struggle ensues, then the party attempted to be arrested or detained may, if it appears necessary to him, kill the person attempting to arrest him or detain him. (30 C. J. 77, sec. 257.)

Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.

Where an unlawful arrest is made by an officer, and nothing is to be reasonably apprehended beyond a mere temporary detention in jail, resistance cannot be carried to the extent of taking life. (State v. Mox Mox, 28 Idaho 176, 152 P. 802; State v. Meyers, 57 Ore. 50, 110 P. 407, 33 L. R. A., N. S., 143; 13 R. C. L. 868; State v. Cantieny, 34 Minn. 1, 24 N.W. 458; Roberson v. State, 43 Fla. 156, 29 So. 535, 52 L. R. A. 751; Noles v. State, 26 Ala. 31, 62 Am. Dec. 711; Williams v. State, 44 Ala. 41; State v. Underwood, 75 Mo. 230; Wharton on Homicide, 3d ed., sec. 409.)

Where an officer has reasonable cause to believe that a felony has been committed by a designated person he is justified in making the arrest without a warrant. (People v. Wilson, 117 Cal. 688, 49 P. 1054; C. S., sec. 8726, subd. 4; Kerr's Penal Code of Cal., sec. 836, note 13.)

Ordinarily, it is not reversible error for a court to admit improper evidence, if it later instructs the jury to disregard the same in their deliberations. (Remus v. United States, 291 F. 501; Collins v. State, 27 Ga.App. 223, 107 S.E. 782; Huckabaa v. State, 19 Ala. App. 11, 95 So. 587.)

WM. E. LEE, J. Budge, C. J., Givens and Taylor, JJ., and Hartson, D. J., concur.

OPINION

WM. E. LEE, J.

For the killing of Charles Boston, John Autheman appeals from a judgment of conviction of murder of the second degree.

On June 28, 1927, on information that a "crazy sheep-herder" had jumped on the running-board of a boy's car and forced the boy, Elmer Terry, to take him "somewhere up the canyon," one Sloat, a deputy sheriff of Bannock county, proceeded to search for the boy and his alleged abductor. While so engaged, Sloat "deputized" Charles Boston and Tom Richardson to assist him. At a roadside garage, where the Terry car had been stopped for a supply of gasoline, Sloat and Boston found Terry and appellant. After asking Terry who had "brought him up there," and Terry having pointed out appellant, Sloat asked appellant to "go down the canyon with us." Appellant asked if the deputy had a warrant. Sloat said he did not need a warrant, and exhibited a deputy sheriff's badge. After satisfying himself that Sloat was an officer, appellant expressed a willingness to accompany Sloat to Pocatello, saying: "I am glad you came up here. I want to go to Pocatello and file on my claims anyway." He thereupon proceeded with Sloat, Boston and Terry down the canyon road toward Sloat's car. After having gone about halfway to the car, suddenly and without warning, appellant grabbed Sloat's revolver. In the struggle that ensued the gun was twice discharged, one bullet hitting Boston, who thereupon "collapsed" to a sitting position in the road, a few feet from where appellant and Sloat were struggling for possession of the revolver. Appellant finally obtained the gun and attempted to shoot Sloat, but the cartridge "jammed." He threw another cartridge into place and again shot Boston, the bullet entering his chest. Sloat and Terry fled. A short time later, Sloat, accompanied by other officers, returned to the scene of the struggle, where Boston was found dead, a small caliber revolver lying a few inches from his outstretched hand.

The defense was based generally on the grounds that the arrest was illegal; that appellant had a right to resist it and regain his liberty; and that, in an attempt to regain his liberty, he killed Boston in self-defense.

Before passing on the principal grounds urged for a reversal of the judgment, it is well to state that, under the authority of C. S., sec. 8726, an officer may make an arrest, in the daytime, without a warrant, on a charge made, upon reasonable cause, of the commission of a felony by the party arrested. The legality of the arrest in this case depends on whether the officer had reasonable cause to believe that a felony had been committed and that appellant was guilty thereof. What constitutes such reasonable or probable cause was stated by Shaw, C. J., in Bacon v. Towne, 4 Cush. (Mass.) 217, as follows: "There must be such a state of facts as would lead a man of ordinary care and prudence to believe, or entertain an honest and strong suspicion, that the person is guilty."

The principal grounds urged by appellant for a reversal of the judgment are that the facts concerning the alleged reasonable cause for making the arrest without a warrant were undisputed; that the court should have determined the legality or illegality of the arrest as a matter of law, and erred in submitting that question to the jury. Appellant relies on People v. Kilvington, 104 Cal. 86, 43 Am. St. 73, 37 P. 799; State v. Anselmo, 46 Utah 137, 148 P. 1071; Wiley v. State, 19 Ariz. 346, 170 P. 869, L. R. A. 1918D, 373; State v. Middleton, 26 N.M. 353, 192 P. 483.

In one of the instructions, the jury was told when an officer may make an arrest without a warrant; they were informed of the meaning of "reasonable cause," and instructed that if they found from the evidence that a charge had been made on reasonable cause of the commission of a felony by appellant, the arrest was legal; if they found that a charge had not been made on such reasonable cause of the commission of a felony by appellant, the arrest was illegal. The definition of reasonable cause given the jury, about which no complaint is made, in effect, left the jury to...